STEPHEN J. ISAACS, 859-252-5757, a Kentucky DUI Attorney with Isaacs Law Office, writes about defenses to Driving Under the Influence / DUI / DWI in Kentucky.

The penalties for a first offense DUI in Kentucky, within a given ten (10) year period, are as follows:

Penalties

Expect to pay a fine of $200 to $500 plus DUI service fees, treatment program fees, county fees, state fees, library fees, and court costs. Based on the county of the DUI conviction, expect the total fine and fees to typically range between $718.00 to $1,058.00.

While serving time in jail may not be required on a DUI first offense, based on the facts, the court may sentence the offender to 48 hours to 30 days in the county jail. Note that in some counties community labor of 48 hours to 30 days may be substituted for the fine or time in jail. If an aggravating circumstance is present at commission of offense, there is a mandatory minimum of four (4) days imprisonment.

Aggravating circumstances which the Court will consider to impose jail time include any one (1) or more of the following:

Operating a motor vehicle in excess of thirty (30) miles per hour above the speed limit;

Operating a motor vehicle in the wrong direction on a limited access highway;

Operating a motor vehicle that causes an accident resulting in death or serious physical injury;

Operating a motor vehicle while the alcohol concentration in the operator's blood or breath is 0.15 or more as measured by a test or tests of a sample of the operator's blood or breath taken within two (2) hours of cessation of operation of the motor vehicle;

Refusing to submit to any test or tests of one's blood, breath, or urine requested by an officer having reasonable grounds to believe the person was operating or in physical control of a motor vehicle in violation of subsection (1) of this section; and

Operating a motor vehicle that is transporting a passenger under the age of twelve (12) years old.

Note that if convicted of an aggravated offense, the statue requires the installation of a mandatory ignition interlock license/device for a period of six months.

License Revocation

The court will also suspend the defendant's privilege to operate a motor vehicle in Kentucky for 30 to 120 days (or, if Defendant is under 18, until Defendant reaches age 18, whichever is longer). For Kentucky licensed drivers, the court will require the defendant to surrender their driver's license at the time of the conviction and will thereafter forward the license to the Kentucky Department of Transportation. For out of state drivers, Kentucky will suspend their privilege to operate a motor vehicle in the Commonwealth of Kentucky. Note that after conviction, the court clerk will notify the Kentucky Department of Transportation of the license suspension. The Kentucky Department of Transportation typically electronically notifies the offender's driver's license home state of the license suspension.

Hardship License

A person whose license had been suspended because of a DUI conviction may apply for hardship license after minimum suspension period expires, but no less than after 30 days.

Alcohol or Substance Abuse Treatment Program

The court will require that the defendant attend an Alcohol and Drug Education ADE) program which meets Kentucky state guidelines. The offender must sign up with an approved ADE course within 10 days.

The science of using a laser to detect a driver operating a moving vehicle under the influence of alcohol has become a reality.

Based on earlier research, Scientists at the Institute of Optoelectronics at the Military University of Technology conceived and developed an experimental laser device capable of detecting alcohol vapor within a moving car. The device works by determining subtle changes in the laser as the beam passes through the alcohol vapor. According to test results, the device successfully detected a simulation of the amount of alcohol exhaled by a person with a concentration of alcohol in their blood of at least 0.1 percent inside of a moving vehicle.

Furthermore, the scientists have considered within their design possible countermeasures which may be used to defeat the accurate measurement of alcohol in the air of the moving vehicle. Some countermeasures, such as using solar screens on the side windows and driving with windows open, did not affect the laser detection of the alcohol test results. The scientists expressed the importance of investigating all possible countermeasures during the next stages of the ongoing project.

A Missouri police officer stopped a motorist for speeding and crossing the centerline. Suspecting the motorist had been driving under the influence, and after the motorist declined to take a breath test to measure his blood alcohol concentration (BAC), the officer arrested the motorist and transported him to a nearby hospital for blood testing. Althought the motorist refused to consent for the blood test, the officer directed a lab technician to take a sample. The officer never attempted to secure a search warrant. The state argued there would not be enought time to obtain a search warrant because blood alcohol disappates over time. The blood test results indicated that the motorist’s BAC tested well above the legal limit. The officer charged the motorist with driving while intoxicated (DWI).

At the trial court, the motorist moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that motorist’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency.

On appeal, the Missouri State Supreme Court agreed with the trial court, and held that a routine DUI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsentual warrantless test violated the motorist’s right to be free from unreasonable searches of his person. The Missouri State Supreme Court relied on Schmerber v. California in which the U.S. Supreme Court held that a DWI suspect’s warrantless blood test where the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence’.

Missouri again appealed the matter to the U.S. Suppreme court, who, in Missouri v. MCNeely, stated that they agreed with the Missouri State Courts.

There exists more than one way to obtain an expungement of a Kentucky criminal record involving more than one misdemeanor.

In Kentucky, KRS 431.078 generally governs when a person may expunge a misdemeanor conviction, a dismissal, or amended charges. However, this statute limits expungments to only ONE criminal offense within a 5 year period. Upon learning this fact most people with more than one criminal record over several years simply give up.

Individuals with criminal records experience difficulty obtaining gainful employment, entering into and staying in the military, or obtaining credit. Many of these people are basically good but may have made an error in judgement, or in some cases, chose to plead guilty to a crime they did not commit because they did not have the money to retain an experienced criminal defense attorney and did not want to remain in jail waiting for trial ( I note that with the help of an experienced criminal defense attorney, many of these people might have qualified for a pre-trial diversion program which would have resulted in an automatic expungement of their criminal charges once they fulfilled the requirments of the program.). Additionally, for some, the court system helped them reform and want to pursue a lawful path in the community.

Some of Kentucky's 120 counties recognize the problem and have expungement programs in place which may not be advertised nor well known to the public nor known by all criminal defense attorneys. Based on the county, the programs go by various names with the criteria for expungement set either by the county attorney or the individual judges. The programs are very fact dependent and are not available to all criminal offenders. These programs typically require advance payment of program and court costs, the meeting of certain conditions by the applicant, agreement by the prosecutor, petitions made to the courts, and more.

As an example, a college student who had committed three misdemeanors (alcohol intoxication) over a period of time feared that he would not be able to obtain gainful employment after graduation and would not be able to pay his student loans. Working with the county attorney, we entered the student into a program so he would not have a criminal record on graduation.

These special program expungments typically require the services of an experienced criminal defense attorney knowledgable about the various county programs.

In order to have a chance at getting a favorable outcome when defending a DUI with an allegedly innocent client, a lawyer should always consider the venue. The venue is where the case will be heard. Kentucky has 120 counties and more than 120 venues (some Kentucky counties contain two venues) plus Federal venues.

Why is venue important? Because in a few venues the judge handling the case or a jury may allow personal bias to influence their decisions. It has been my experience that the judges and juries are sometimes influenced by DUI news worthy events (no matter how remote in time), church values, how a defendant presents themselves, morals, and more.

For example, in one case I handled a few years ago, I stated to my client that the county treats DUI's harshly and that it would be difficult to prove a person's innocence in that venue. I explained that in 1988 a drunk driver going the wrong way on Interstate 71 in Carrolton Kentucky struck a church bus which resulted in a fire causing the deaths of 27 young people from this county. The client, maintaining his innocence, still decided to proceed.

Some venues are biased against alleged DUI offenders based on community values. In yet another case, while eating at a McDonald's restraurant, I discovered a hidden bias in that small southern Kentucky city. While waiting for my meal, I struck up a conversation with a friendly retired deputy sherif and learned that this county primarily consisted of two large families who were biased against anyone charged with a DUI. He explained that since my client was not a member of either family he would be considered an outsider. The cashier joined in our conversation and realized that she was related to the retired deputy sherif along with the prosecutor and the deputy sherif who arrested the defendant. Discussions with local defense attorneys and officers not involved in my client's case supported this community bias.

In both examples, at the suppression hearings, I elicited testimony favorable for my clients from the arresting police officers and which should have resulted in suppression of certain DUI evidence. Suppressing certain evidence supporting an element of a DUI typically causes the prosecutor to reassess whether they could get a conviction for a DUI if the matter went to trial. Without certain DUI evidence the prosecutor may decide to dismiss the DUI. Yet both judges ruled against my clients contrary to the testimonial evidence from the officer. One judge stated that if the defendant did not like his decision then he could raise the matter on appeal.

So what can an allgedly innocent DUI Defendant do where it appears the judge has exhibited bias against the defendant? Well, prior to trial, a Defendant can enter an Alford guilty plea with no right to appeal, a conditional guilty plea in order to file an appeal where the defendant argues the legal merits of his case to a higher court, or take the matter to trial and appeal the legal merits of their case if the jury convicts the defendant. In Kentucky, a defendant claiming their innocence can enter an Alford plea which is a guilty criminal plea where the defendant admits that sufficient evidence exists with which the prosecution could likely convince a judge or jury to find the defendant guilty beyond a reasonable doubt. If the defendant decides to take the matter to trial, then the defense attorney will try to flush out juror biases to eliminate biased jurors prior to trial during the jury selection process.

Over the years clients have asked me if it’s possible for them to get drunk when they did not drink an alcoholic drink. The answer, yes!

But then, this should come as no surprise to scientists since human bodies contain two of the required ingredients to make beer, glucose (sugar) and yeast. Yeast is an essential part of the beer process since it feasts on sugars and makes alcohol as a by-product. Add carbohydrates or grains and one has all of the necessary ingredients for the human body to naturally form alcohol.

According to one scientific study, Bladder Beer - A New Clinical Observation - trace amounts of alcohol were found in normal circumstances in the blood of patients who had not consumed alcohol. The study revealed that Candida - a yeast - will consume glucose and produce measurable amounts of alcohol as a byproduct in a urine specimine kept in the laboratory for several days at room temperature.

Japanese scientists further reported findings which they call the Auto-Brewery Syndrome where middle-aged patients with bowel abnormalities who had yeast overgrowth, usually Candida, in the GI tract and who ferment ingested carbohydrates, produced enough alcohol to result in drunkenness. Unfortunately, the endogenous ethanol 'auto-brewery syndrome' as a drunk-driving defense challenge typically lacks merit.

For the last five years, I have both prepared the DUI presentation materials and/or lectured to lawyers as part of a New Lawyer Continuing Legal Education sponsored by the Kentucky Bar Association (KBA). Kentucky lawyers can access my lecture notes either directly on the KBA website or from the KBA CLE center.

During my DUI presentations I have shown many humorous internet videos to augment my presentation as a means of introducing the new lawyers to DUI defense. I have now posted the links to these videos under the heading of "DUI Humor" in the left most column. Please note that by posting these videos I am in no means advocating that it is funny to drive impaired: drinking and driving impaired is a very serious matter.

Additionally, both new lawyers and viewers may find helpful the articles I posted under the heading "DUI Articles" which can also be located in the left most column. Note that the reader should always check current laws and research to verify that the posted articles remain accurate.

Please add your comments to this post regarding any changes or additions you believe would be helpful to the legal and general community. Thank you.

Can a person taking over-the-counter or prescription medication be charged with DUI? In short, yes.

Kentucky can and does charge individuals with DUI who claim to have taken only prescription or over-the-counter drugs - even if the level of the dose was below the therapeutic dose. Unfortunately, the fact that a person has taken a therapeutic dose of a medication can mean that they were impaired.

Importantly, some drugs, by their very nature and even when taken according to the prescription or manufacturer instructions can cause impairment for driving. For example, sleep aids taken at a therapeutic level cause sleep. In the case of individuals with ADD or ADHD, the use of amphetamine can result in a DUI as a result of law - even if the medication makes the person with ADD or ADHD a less distracted and thereafore a better driver.

According to KRS 189A.010(1)(d) and KRS 189A.010(12), a person can be found guilty of DUI if any of the following substances are found in their blood within two hours of the cessation of the operation of a motor vehicle:

It’s not often that I am involved with a Driving Under the Influence story before it becomes the news, but it happened in the case of a Kentucky man arrested for DUI / DWI while riding a horse. I received a telephone call from a reporter asking for background information on how the police could arrest and charge a person riding a horse for DUI in Kentucky. Accordingly, I am sharing the information herein.

It seems that Danny Reynolds of Jessamine County, KY, which is located approximately 16 miles from Lexington, Fayette County, Kentucky, had been drinking celebrating his son’s birthday, and then went horseback riding near his home with friends. At the time of his arrest, police reported that Mr. Reynolds allegedly had several beers, marijuana, and moonshine in his possession. Police reported Mr. Reynolds blood-alcohol level as double the legal limit.

Police arrested Mr. Reynolds for violating KRS 189.520 titled "Operating vehicle not a motor vehicle while under influence of intoxicants or substance which may impair driving ability".

Essentially, KRS 189.520 states that "No person under the influence of intoxicating beverages or any substance which may impair one's driving ability shall operate a vehicle that is not a motor vehicle anywhere in this state." KRS 189.520 further states that "(a) If there was an alcohol concentration of less than 0.05, it shall be presumed that the defendant was not under the influence of alcohol; (b) If there was an alcohol concentration of 0.05 or greater but less than 0.08, such fact shall not constitute a presumption that the defendant either was or was not under the influence of alcohol, but such fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant; and ( c) If there was an alcohol concentration of 0.08 or more, it shall be presumed that the defendant was under the influence of alcohol. Violating KRS 189.520 is a violation and not a misdemeanor. According to KRS 189.990, violating KRS 189.520 will result in a fine of $20 to $100 dollars for each offense.

So what constitutes a non-motorized vehicle? Typically the list may include, but is not limited to: bicycles, horses, mules, horse drawn carts, skateboards, pedal powered surrey’s, canoes, boats propelled by paddles, electric toy cars, balloons, and more. Based on the county, it may also include non-registered mopeds under 50 cc.

Interestingly, KRS 189.520(2) makes it illegal for a law enforcement officer to not enforce charging a person with operating a non-motorized vehicle while under the influence. According to KRS 189.990, any peace officer who violates KRS 189.520(2) will be fined not less than $35 nor more than $100.

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